10.3.2012   

EN

Official Journal of the European Union

C 73/21

1.

Are Articles 43 EC and 49 EC to be interpreted as in principle precluding legislation of a Member State, such as Article 88 of the Testo unico delle leggi di pubblica sicurezza (Consolidated Law on public security; ‘the TULPS’), under which ‘a permit to organise betting may be granted exclusively to persons holding a licence or authorisation issued by a Ministry or another body to which the law reserves the right to organise and manage betting, and also to persons to whom that responsibility has been entrusted by the licence-holder or by the holder of an authorisation, by virtue of such licence or authorisation’, and Article 2(2b) of Decree-Law No 40 of 25 March 2010, converted by Law No 73/2010, under which ‘Article 88 of the (TULPS), which references to Royal Decree No 773 of 18 June 1931, as subsequently amended, is to be interpreted as meaning that the permit provided for therein, where it is granted for commercial businesses involving gaming and the collection of bets for cash prizes, shall be deemed to be effective only after the operators of those businesses have been granted the appropriate license to carry on such gaming and collect such bets by the Independent Authority for the Administration of State Monopolies of the Ministry of Economic and Financial Affairs’?

2.

Are Articles 43 EC and 49 EC to be interpreted as in principle also precluding national legislation, such as Article 38(2) of Decree-Law No 223 of 4 July 2006, converted by Law No 248/2006, under which ‘Article 1(287) of Law No 311 of 30 December 2004 shall be replaced by the following:

“287.   By measures of the Ministry of Economic and Financial Affairs — Independent Authority for the Administration of State Monopolies — the new rules for distributing gambling on events other than horse racing shall be laid down in accordance with the following criteria:

… (l) laying down the procedures for safeguarding licensees for the collection of bets at fixed odds on events other than horse racing governed by the regulations contained in Decree No 111 of 1 March 2006 of the Minister for Economic and Financial Affairs.”’

The question whether Article 38(2) is compatible with Articles 43 EC and 49 EC relates, in particular, to the extent to which under Article 38(2) there is a general tendency to protect licences issued before the legal framework was amended and a number of restrictions and measures are provided for which could ultimately ensure de facto the maintenance of pre-existing commercial positions, as evidenced, for example, by the obligations to open new sales points at a distance from those already authorised. The question further relates to the general interpretation placed on Article 38(2) by the Independent Authority for the Administration of State Monopolies by inserting in licensing agreements a clause relating to lapse of the licence where analogous cross-border activities are engaged in directly or indirectly.

3.

If the answer is in the affirmative, that is to say that it considers compatible with Community law the national rules cited in the preceding paragraphs, is Article 49 EC to be interpreted further as meaning that, where the freedom to provide services is restricted for reasons in the public interest, consideration must be given in advance to whether sufficient account is not already taken of this public interest by the legal provisions, checks and investigations to which the service provider is subject in the State in which he is established?

4.

If the answer is in the affirmative, as set out in the preceding paragraph, must the referring court take account, in the context of its examination of the proportionality of a similar restriction, of the fact that the relevant provisions of the State in which the service provider is established provide for a degree of control which is equal to or actually exceeds that of the State in which the services are provided?